HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 099 - Order On Mot Protective OrderIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02063-CNS-MEH
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
ORDER ON MOTION FOR PROTECTIVE ORDER
Magistrate Judge Michael E. Hegarty.
Before the Court is Plaintiff City of Fort Collins’s (“Plaintiff” or the “City”) Motion for
Protective Order to Require Defendants’ Compliance with the October 14, 2021 Stipulated
Protective Order (the “Motion” or “Motion for Protective Order”). ECF 64. The Motion is fully
briefed. For the following reasons, the Motion is denied.
BACKGROUND
This case arises out of a contractual dispute between the City and Defendants Open
International, LLC and Open Investments, LLC (collectively, “Open”).1 See generally ECF 6. In
2018, the City and Open entered into a Master Professional Services Agreement and Software
1 Although there are two named Defendants in this case, the Parties routinely refer to Defendants
as one entity. See, e.g., ECF 64; ECF 74. The Court does the same here.
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License Agreement governing the implementation of a billing system for both existing utilities and
a new broadband service (the “Project”). Id. at ¶¶ 18-19, 30. The Project did not proceed as
anticipated, and on July 2, 2021, Plaintiff initiated this civil action in state court, asserting against
Open claims of fraudulent inducement, breach of contract, and breach of the covenant of good
faith and fair dealing, as well as a claim for declaratory judgment. See generally id. Open removed
this case to federal court on July 30, 2021. ECF 1.
Thereafter, the court held a scheduling conference, entered the Scheduling Order, and the
parties began the discovery process. ECF 21; ECF 22. On October 14, 2021, the court entered the
Parties’ Stipulated Protective Order. ECF 32. Relevant here, the Protective Order states as
follows:
Discovery in this Action is likely to involve production of confidential, proprietary,
or private information for which special protection from public disclosure and from
use for any purpose other than prosecuting and defending this litigation may be
warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Protective Order. The Parties acknowledge that this Order does
not confer blanket protections on all disclosures or responses to discovery and that
the protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable
legal principles.
Id. at § 1.1. The Protective Order provides that its protections “cover not only Protected Material
. . . but also (1) any information copied or extracted from Protected Material; (2) all copies,
excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations,
or presentations by Parties or their Counsel that might reveal Protected Material.” Id. at § III.
“Protected Material” is defined as any disclosure or discovery material that is designated as
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – AEO,” or “HIGHLY CONFIDENTIAL –
SOURCE CODE.” Id. at § 2.15.
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The Protective Order provides that a Party receiving materials in discovery “may use
Protected Material that is disclosed or produced by another Party or by a Non-Party in connection
with this Action only for prosecuting, defending, or attempting to settle this Action,” and such
documents may be disclosed “only to the categories of persons and under the conditions described
in th[e] Protective Order.” Id. at § 7.1. The Protective Order limits the disclosure of items
designated as “CONFIDENTIAL” to a limited number of specific parties. See id. at § 7.2.
In its Motion for Protective Order, the City asserts that Open has used confidential
documents obtained in discovery and covered by the Protective Order “outside of this litigation to
make a [Colorado Open Records Act (“CORA”)] request to obtain ‘public versions’ and avoid the
protections of” the Protective Order. ECF 64 at 1-2 (emphasis omitted). The City contends that
this “use” of the materials outside of this litigation violates the Protective Order. Id. at 10-11.
Moreover, the City maintains that orders of the court, including the Protective Order, “void the
CORA request” pursuant to Colo. Rev. Stat. § 24-7-204(1)(c) and the Supremacy Clause in the
United States Constitution. Id. at 2 (emphasis omitted). In response, Open argues that the
Protective Order does not restrict its right to seek public records under CORA. ECF 74 at 1-2.
Open further contends that the appropriate avenue for the City to challenge its CORA request is
“a separate action instituted in state court, not through motion practice in pending litigation.” Id.
at 2.
With respect to the relief requested in the Motion, Plaintiff seeks a court order (1) directing
“Open and its counsel [to] comply with the [Protective Order] and stop further improper use of
Protected Material, including in the CORA request,” and (2) ordering “that the City’s compliance
with the [Protective Order] supersedes any potential liability under CORA, pursuant to the
Supremacy Clause which renders the CORA request void.” ECF 64 at 14. Plaintiff does not
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suggest that the Protective Order must be modified or supplemented, nor does Plaintiff seek the
imposition of sanctions for any alleged violations of the Protective Order. See generally id. The
Court considers Plaintiff’s request and the Parties’ arguments below.
LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense. Fed. R. Civ. P. 26(c). The party seeking a protective order bears the
burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d
323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the
court. Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). The good cause standard is
highly flexible, having been designed to accommodate all relevant interests as they arise. See id.
However, “[c]onclusory or stereotypical assertions are insufficient to show good cause.” Exum v.
U.S. Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002).
ANALYSIS
I. The Circumstances Giving Rise to the Motion for Protective Order
Based on the Parties’ briefing and attached exhibits, the Court ascertains the non-
exhaustive timeline of this dispute as follows: On May 16, 2022, Open’s counsel emailed counsel
for the City and informed the City’s counsel that they intended to file a CORA request within three
days unless the City “agree[d] to waive confidentiality over certain specified documents” listed in
the email or if the City’s counsel would agree “to be the conduit for this request, instead of [Open]
submitting [the request] to the City’s CORA portal directly.” ECF 64-5 at 2. According to
Plaintiff, the listed documents “were the City’s internal OASIS Project Decision Record
Memoranda, including drafts and pre-decisional deliberate material subject to protection under
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common law governmental deliberative process privilege.” ECF 64 at 7-8. On May 18, 2022, the
City responded that Open’s anticipated CORA request would violate the Protective Order’s
process for challenging confidentiality designations and the Scheduling Order’s discovery
limitations. ECF 64-7 at 2-3. The City informed Open that “[s]hould Open proceed with this
CORA request, the City will seek a protective order requesting that Open utilize the proper
discovery procedures.” Id. at 3. Open replied that its CORA request was proper, ECF 64-8 at 5,
and submitted its CORA request to the City. Id. at 2.
The City responded to the CORA request by stating, inter alia, that “[s]ince the production
of the Requested Records is governed by the Scheduling Order and the Protective Order entered
by a Federal Court, the City and its employees cannot provide them to you and your clients through
this CORA request, which is the result authorized in C.R.S. Section 24-72-204(1)(c).”2 ECF 64-
9 at 2-3. Thereafter, Open informed the City of its intent “to apply to the [state] district court for
an order directing the custodians to show cause why the custodians should not permit inspection
of the records we requested,” ECF 64-10 at 1-2, which is the applicable procedure under CORA
for challenging the denial of the right to inspect documents. See Colo. Rev. Stat. § 24-72-
204(5)(a).3 It appears that the instant Motion was filed in response to Open’s representation.
II. Whether Open Violated the Protective Order by Submitting a CORA Request
Plaintiff argues that Open violated the Protective Order, which prohibits the use of
documents designated as confidential outside of this litigation, by “using” Protected Material as
2 This CORA provision contains an exception to the disclosure of documents if “[s]uch inspection
is prohibited by rules promulgated by the supreme court or by the order of any court.” Colo. Rev.
Stat. § 24-72-204(1)(c).
3 Open states that it is “holding its state court action in abeyance pending resolution of the City’s
Motion.” ECF 74 at 7. It is unclear from the Parties’ briefing whether Open has actually filed a
state court action challenging the CORA response.
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the basis for its CORA request. ECF 64 at 7, 11. Specifically, the City asserts that Open “used
[its] knowledge of the Produced Protected Material and the information contained therein” in
submitting its CORA request. ECF 64 at 11 (emphasis omitted). The Court acknowledges the
City’s emphasis on Open’s statement to the City that it would seek public disclosure of certain
documents—accompanied by specific Bates numbers—if the City did not waive its confidentiality
designations of those documents. See ECF 64-5 at 2. The City also points the Court to Open’s
counsel’s email stating that “if Open can obtain the identified memoranda 4 through the CORA
process, the memos could be used without restriction from the . . . Protective Order.” ECF 64-8
at 3 (footnote added); ECF 64 at 11. In addition, the City references Open’s statement to opposing
counsel indicating that while counsel could presently not identify a basis to challenge Plaintiff’s
confidentiality designations of the documents, “if someone can and does obtain the memos through
an open-records request, at that point, the designation would be improper because a CORA
production would show the memos are publicly available and not confidential.” ECF 64-8 at 3;
ECF 64 at 11. But Open counters that it gained knowledge of the “Vanir memoranda,” i.e, more
than a dozen final and draft memoranda prepared by Vanir employee Dr. Michelle Frey between
December 2019 and March 2020, through its work on the Project – not discovery. Open also
argues that the Protective Order does not “circumscribe a party’s use of its ‘knowledge of’
protected material,” but only precludes a party’s “‘use’ of the material itself.” ECF 74 at 10.
Neither Party cites case law in support of its argument concerning what constitutes the “use” of
Protected Material. See ECF 64; ECF 70.
4 The Court understands the “identified memoranda” to refer to the Bates-numbered documents
listed in Open’s initial CORA-related email to the City. See ECF 64-5.
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Protected Material. As explained above, the Protective Order provides that a Party “may
use Protected Material that is disclosed or produced by another Party or by a Non-Party in
connection with this Action only for prosecuting, defending, or attempting to settle this Action.”
ECF 32 at § 7.1. As an initial matter, Open argues that it did not learn of the documents that it
seeks from this litigation. Instead, it contends that as part of the Project, “the parties shared access
to more than a dozen final and draft memoranda prepared by Vanir employee Dr. Michelle Frey
between December 2019 and March 2020.” (“Vanir Memoranda”). ECF 74 at 3; ECF 74-1 at ¶ 5.
The City disputes this characterization, and contends that “Open downloaded and ‘obtained’ the
documents at issue five days after Open received a copy of the Complaint and actual notice of the
litigation” and that “it had no authority or credential to access any of the City’s databases per the
City’s termination of Master Professional Services Agreement (‘MPSA’).” ECF 84 (citing ECF
64-4).
To the extent that the Parties seek a determination from this Court as to whether the Vanir
Memoranda were obtained in violation of the MPSA, this Court declines to do so on the record
before it. This Court will simply assume, without finding, that the Vanir Memoranda amount to
Protected Material under the Protective Order.
Use. The Protective Order does not define the term “use,” see generally id., and thus, the
Court interprets the Protective Order according to its plain language. See S.E.C. v. Merrill Scott
& Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (“The starting point for interpretation of a
protective order lies in its plain language.”); Env’t Dimensions, Inc. v. Energysolutions Gov’t Grp.,
Inc., No. CV 16-1056 WJ/JHR, 2019 WL 5964585, at *2 (D.N.M. Nov. 13, 2019) (“[T]he court
that entered the protective order has the power to construe it.”).
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This Court has located a small number of cases construing the term “use” in the context of
determining whether a party used confidential or protected documents outside of litigation in
violation of a governing protective order. Notably, a number of courts have concluded that a
party’s use of its knowledge that documents exist does not necessarily constitute the use of those
documents. For example, in Streck, Inc. v. Research & Diagnostic Systems, Inc., the court was
tasked with determining whether “the plaintiff’s reliance, if any, on the protected documents
disclosed in [the] case when pursing disclosure of the same documents in [a separate] interference
proceeding constitute[d] a violation of the protective order,” which barred the “use” of confidential
information for purposes outside of the litigation. 250 F.R.D. 426, 435 (D. Neb. 2008).
Specifically, the defendants in Streck argued that the plaintiff sought certain documents in the
separate proceeding “only because of the knowledge gained through exposure to the protected
documents in [the Streck] case.” Id. at 434. Even though the plaintiff had referenced the protected
documents in the separate proceeding, see id. at 433-34, the court concluded that the defendants’
arguments “strain[ed] the term ‘use,’” as the plaintiff had not disclosed any confidential
information from the documents and “was not relying on the materials themselves, but [was
instead] attempting to secure their disclosure in the interference proceeding.” Id. at 435.
Similarly, a court in the Eastern District of Wisconsin concluded that the plaintiffs had not
improperly “used” documents in violation of a protective order even if they had “used knowledge
of the existence of such documents” to seek the same documents in an inter partes review (“IPR”)
proceeding. Milwaukee Elec. Tool Corp. v. Snap-on Inc., No. 14-cv-1296-JPS, 2016 WL 1719657,
at *1, *4 (E.D. Wis. Mar. 16, 2016). In so finding, the court identified “a distinction between the
use of knowledge regarding the existence of certain documents versus the use of confidential
content within the documents.” Id. at *4. Although the plaintiffs had “used” the Bates numbers
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from certain discovery documents in formulating their IPR discovery request, the court noted that
“[t]he Bates numbers in and of themselves are certainly not confidential information,” and the
plaintiffs had not “actually used any of the confidential content within those documents” in
forming their request. Id. The court concluded that the plaintiffs’ conduct had not violated the
protective order barring the use of confidential information or documents outside of the litigation.
Id.; cf. Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Tr. Co., 192 F. Supp. 3d 400, 405 (S.D.N.Y.
2016) (concluding that a protective order barring the “use” of discovery documents was not
violated where a party “us[ed] their knowledge of what ha[d] been produced . . . to advocate for
the production of the same documents, if otherwise discoverable, in a parallel case against a
different defendant”); cf. Smith v. Bradley Pizza, Inc., No. 0:17-cv-2032-ECT-KMM, 2019 WL
430851, at *3 (D. Minn. Feb. 4, 2019), aff’d, 821 F. App’x 656 (8th Cir. 2020) (defense counsel
“used” confidential information in other proceedings where they shared the confidential
documents and information with their other clients).
Finally, fairly analogous to the instant matter is High Point SARL v. Sprint Nextel Corp.,
280 F.R.D. 586 (D. Kan. 2012). In High Point, a non-party sought a protective order prohibiting
the plaintiff from using documents that had been produced by the non-party in the District of
Kansas action in separate litigation pending in Japan. 280 F.R.D. at 588. The non-party argued
that the plaintiff had “used” the subject documents in subpoenaing documents for the Japanese
litigation; specifically, the non-party noted that the plaintiff had requested the non-party’s
permission to use the documents in the Japanese case, but that the non-party had declined, and
asserted that the plaintiff’s subsequent subpoena application “was undoubtedly based on and
motivated by information gathered from [the non-party’s] protected materials.” Id. at 590-91.
After thoroughly analyzing applicable case law, the court concluded that although the non-party
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had submitted some circumstantial evidence raising “reasonable suspicions on the source of [the
plaintiff’s] knowledge of the existence of” the documents, the court could not definitively conclude
that the plaintiff had, in fact, “used” the documents produced by the non-party in requesting the
subpoena. Id. at 597. Ultimately, the court determined that accepting the non-party’s arguments
“require[d] too much speculation and drawing of inferences from circumstantial evidence.” Id.
The Court finds these cases persuasive. Even assuming, without deciding, that Plaintiff is
correct that Open used its knowledge of the Protected Materials to submit its CORA request to
obtain the same documents covered by the Protective Order, “there is a distinction between the use
of knowledge regarding the existence of certain documents versus the use of the confidential
content within the documents.” Milwaukee Elec., 2016 WL 1719657, at *4. Like Milwaukee
Electric and Streck, the Court concludes that the fact that a party knows that certain documents
exist, and uses that knowledge to attempt to seek the disclosure of those documents outside of the
litigation, is insufficient to establish that the party “used” those specific documents themselves or
the information therein. Id.; Streck, 250 F.R.D. at 435. The plain meaning of the term “use,” in
the Court’s view, requires something more than the mere use of one’s knowledge that documents
exist, and would instead require the substantive reliance on or utilization of the documents
themselves to achieve a specific purpose. Indeed, Black’s Law Dictionary defines the term “use”
as “[t]o employ for the accomplishment of a purpose; to avail oneself of.” Use, Black’s Law
Dictionary (11th ed. 2019). Even if Open submitted the CORA request based on its knowledge of
the Protected Materials, this alone does not amount to an “employ” of those materials or
information specifically, and thus, does not amount to the “use” of those protected documents. See
Streck, 250 F.R.D. 435 (distinguishing between relying on materials and attempting to secure the
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materials’ disclosure in another proceeding). To hold otherwise would expand the definition of
“use” beyond its plain meaning.
Entitled to Protection Under the Applicable Legal Principles. The Protective Order also
provides that “the protection it affords from public disclosure and use extends only to the limited
information or items that are entitle to confidential treatment under the applicable legal principles.”
ECF 32 at § 1.1.
Open’s reference to Bates numbers corresponding with Protected Materials does not
demonstrate that it “used any of the confidential content within those documents” in its CORA
request. Milwaukee Elec., 2016 WL 1719657, at *4; cf. Streck, 250 F.R.D. at 435 (the general
reference to protected documents was “insufficient” to establish a violation of the protective
order). Although the emails from counsel may raise “reasonable suspicions” about the motivations
underlying Open’s CORA request, Open’s motivations are not relevant to the Court’s inquiry.
Rather, the Court can only determine whether Open’s act of filing the CORA requests definitively
constitutes a violation of the Protective Order; based on the record before it, the Court cannot reach
such a conclusion. In short, Open has not “used” confidential information within the documents
in the CORA request, and, by its plain terms, the Protective Order does not otherwise prohibit any
party from making a CORA request.5
In making this ruling, the Court is also mindful that CORA provides a statutory right to
request public records, independent of the discovery procedures set forth in the Federal Rules of
Civil Procedure. Wick Commc’ns Co. v. Montrose Cnty. Bd. of Cnty. Comm., 81 P.3d 360, 364
(Colo. 2003) (“[T]he general purpose of CORA is to provide open government through disclosure
5 The Court notes that the scope of Open’s CORA request is similar to a request made in
Defendants’ first set of discovery requests. Compare ECF 43-10 with ECF 74-4.
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of public records.”). “[I]t would be inappropriate to enter a protective order prohibiting [a party]
from gathering information through a means which is independent from the discovery devices
employed in this case.” Gulf States Steel of Ala., Inc. v. Sec’y, Dep’t of Lab., No. CIV.1:94-cv-
2760-ODE, 1994 WL 794755, at *1-2 (N.D. Ga. Nov. 16, 1994); Noland v. City of Albuquerque,
No. CIV-08-0056 JB LFG, 2009 WL 5217998, at *2 (D.N.M. Oct. 27, 2009) (“The Court will not
prohibit [plaintiff] from exercising his right under New Mexico law to make valid requests for
public records.”);6 cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33-34 (1984) (“[J]udicial
limitations on a party’s ability to disseminate information discovered in advance of trial implicates
the First Amendment rights of the restricted party to a far lesser extent than would restraints on
dissemination of information in a different context.”). While those litigating against the
government may not use open-records requests “to circumvent limitations placed on discovery by,
for example, obtaining otherwise privileged material,” those requesting information “also are not
to be denied equal access to government records.” Horsehead Indus., Inc. v. E.P.A., 999 F. Supp.
59, 67–68 (D.D.C. 1998) (Freedom of Information Act (“FOIA”) case); Guy v. Whitsitt, 469 P.3d
546, 552 (Colo. App. 2020) (“Though not identical, CORA and FOIA share the same purpose.”).
6 The Court questions whether it would even have authority under Rule 26 to restrain Open’s
ability to request public records under CORA or disclose those records, given Rule 26(c)’s
limitation to discovery conduct. See High Point, 280 F.R.D. at 594 (“The Court’s authority over
High Point’s discovery devices is limited to those made in this case”) (emphasis omitted); Hetronic
Int’l, Inc. v. Rempe, No. CIV-14-787-C, 2015 WL 13935654, at *2 (W.D. Okla. Apr. 23, 2015)
(citing cases suggesting that Rule 26 does not provide a court authority to issue protective orders
governing documents obtained outside of discovery).
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In sum, Plaintiff has not met its burden of demonstrating that Open violated the Protective
Order in this case.7 For this reason, the Court declines to issue any further protective orders or
enter an order requiring Open to comply with the already-in-place Protective Order.
III. CORA and the Supremacy Clause
Finally, the Court briefly addresses Plaintiff’s request that the Court issue an order holding
that “the City’s compliance with the [Protective Order] supersedes any potential liability under
CORA, pursuant to the Supremacy Clause which renders the CORA request void.” See ECF 64
at 14. This request arises out of the City’s argument that “pursuant to the Supremacy Clause, this
Court’s orders (including the [Protective Order]) supersede those of any state Court on this issue
and the City would not be subject to liability under the Colorado statute despite any action by Open
to seek court intervention in state court.” Id.
The Court declines to issue such an order. “One limitation on the judicial power is the
prohibition of advisory opinions, which requires that courts must adjudicate only ‘concrete legal
issues, presented in actual cases, not abstractions.’” United States v. Muhtorov, 20 F.4th 558, 607-
08 (10th Cir. 2021) (quoting Golden v. Zwickler, 394 U.S. 103, 108 (1969)). The City’s liability
under CORA for denying public inspection of documents, if any, is not at issue before this Court
or in this civil action. Indeed, a person challenging the withholding of documents pursuant to
CORA must “apply to the [state] district court of the district wherein the record is found for an
order directing the custodian of such record to show cause why the custodian should not permit
the inspection of such record.” Colo. Rev. Stat. § 24-72-204(5)(a). While Open has informed the
City of its intent to bring such a challenge in state court, ECF 64-10, it does not appear that it has
7 In light of this ruling, the Court does not reach Open’s arguments that the documents sought by
Open in its CORA request do not fall within the definition of “Protected Material” in the Protective
Order. See ECF 74 at 10-11.
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done so yet. See ECF 74 at 7. In any event, the determination of any liability under CORA is
appropriately reserved for the state court. If the City believes that the CORA request is void under
the Supremacy Clause, see ECF 64 at 14, that the requested records fall within a CORA exception,
see id. at 7 (citing Colo. Rev. Stat. §§ 24-72-203(1)(a) and 24-72-204(1)(c)), or that the requested
documents are protected by the deliberative process privilege, see id. at 7-8, it may raise those
arguments in state court when and if the challenge is initiated and the issue is ripe for adjudication.8
For all of these reasons, the Court does not find it necessary to issue any additional
protective orders at this time. The Motion for Protective Order is denied.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1) Plaintiff City of Fort Collins’s Motion for Protective Order to Require Defendants’
Compliance with the October 14, 2021 Stipulated Protective Order [filed June 17,
2022; ECF 64] is DENIED.
Entered and dated at Denver, Colorado, this 16th day of August, 2022.
BY THE COURT:
_________________________
Michael E. Hegarty
United States Magistrate Judge
8 This Court’s order is specifically limited to a determination that Open’s CORA request did not
constitute “use” of Protected Materials as defined in the Protective Order. The Court does not pass
on the validity of the CORA request or whether the materials requested in the CORA request fall
within the Protective Order and/or are subject to any CORA exception.
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